Pages

Sunday, 6 November 2016

Whether lawyers can ask Judge to recuse from particular case?

Again, at this stage, Shri V.V. Bhangde, the learned counselfor the appellant/defendant No.2, submits that the office be givendirection not to list the matters in which he is appearing for any of theparties before this Court. In other words, he submits that I shouldrecuse from taking up the matters wherein Shri V.V. Bhangde isappearing for any of the parties. The submission shocks myconscience, particularly when it suddenly came from a regularpractitioner from this Court, who was being looked at as anexperienced and responsible officer of the Court. The entirearguments in this matter went on smoothly, patiently and withinterest. After conclusion of the arguments, both the learned counselswere asked as to whether they intend to make any additionalsubmissions, and thereafter the dictation commenced as per the usualpractice. I need not delve upon any further and I refrain from making

any comments against Shri V.V. Bhangde. However, the increasingtrend need to be commented upon; so as to caution the lawyers andthe litigants about the consequences of it, which can be avoided.15. A lawyer has his own choice of appearing before the Courtpresided over by a particular Judge to conduct the matter. If hismatter is listed before the Court where he does not want to appear, heis at liberty *to return such matter and/or fees to his client and canask him to engage some other lawyer or he may refuse to accept thematter if he has not already filed his vakalatnama. A Judge may alsorecuse himself from taking up the matters of the lawyers with whomhe is closely related or where his conscious does not permit him totake up the matters of some lawyers. In these situations, there maynot be any problem either with a Judge or a lawyer, but where theCourt passed an order against a particular lawyer not to appear in hisCourt, it takes a colour of penalty or punishment to such a lawyer,which may result in taking some disciplinary action against him by theBar Council of India or of State, which issued him a Sanad of Practice.Such a stage by a Court may be construed of blacklisting of a lawyer.Seldom, such event occurs, and the Courts also normally avoid it.

16. A tendency has started growing amongst lawyers to dictate aJudge to recuse from taking up his matters when the decision goesagainst his client or his wavelength does not match with the Judge orhe does not find comfort in conducting the matter or for some suchreasons. This is an insult personally to a Judge. Such reactions arenormally experienced when the lawyers take heavy fees from theirclients with an assurance to bring the result of the cases in their favouror to impress upon the clients sitting in the court room during thecourse of hearing, the boldness which he possesses to browbeat theCourt. If a lawyer exercises his choice of not conducting the matter,he loses his client and fees, which he does not want to do. If a Judgeaccedes to such demand of a lawyer for recusal, the effect isthree­fold ­ (i) the confidence of a lawyer to browbeat the Court isboosted, (ii) a lawyer gets rid of the Court where he finds discomfortin conducting the matter, and (iii) it creates an additional source ofincome for him, from the other lawyers and the litigants, who do notwant their matters listed or dealt with by such a Judge. This promotesthe practice of bench­hunting. No system of justice can tolerate suchpractice by a lawyer and the same is required to be curbed anddeprecated.

17. Recently, in the judgment, which I have delivered in CivilRevision Application No.26 of 2016 on 6­6­2016 (Satish MahadeoraoUke v. The Registrar, High Court of Bombay, Bench at Nagpur, Nagpur),I have observed in para 25 thereof as under :“25. A Judge may recuse at his own choice from a caseentrusted to him by the Chief Justice and it would be a matterof his own choosing. But recusal at the asking of the litigatingparty, unless justified, must never be acceded to. This is whatthe Apex Court has held recently in NJAC case instituted by theSupreme Court Advocates­on­Record ­ Association and anotherv. Union of India, reported in 2015 (11) SCALE 1. Thequestion of recusal is normally decided by a Judge on the basisof his personal or private interest in the subject­matter of thelitigation, his intimacy with the party/parties to a lis beforehim, his perception about conflict of interest in taking up thematter, and his own conscience. Such decision does not dependupon the dictates of lawyers or litigants. ...”18. Recusal to take the matters to be conducted by some lawyers,is a matter of Judge's own choosing and it cannot be at the dictates ofthe lawyers. What a Judge has to see is that he performs his duty ofdeciding the matters before him without fear or favour, affection orill­will. He has to keep in mind the principle that the justice should

not only be done, but it must appear to have been done. The decisionof recusal to take the matters of lawyers, depends upon the Judge'spersonal relations or intimacy with such lawyers, and his ownconscience to decide a case by observing the oath which he has takenwhile occupying the position as a Judge. Ultimately, a Judge is also ahuman­being and the Judges come from different strata of the Society,having their own views, ideas, angle or perception, based on thevaried individual experience in life, which may or may not match witheach others or with some lawyers or litigants. However, this cannot bea reason to avoid conducting the matters listed before such a Judge orthe Judges. Once the constitutional authority of a Judge or the Judgesto adjudicate the matters is accepted, it cannot be lowered down byasking him or them to recuse to hear and decide the matter. 19. To prevent a Judge or the Judges from performing his ortheir duties in this fashion causes distraction of attention in thejudicial proceedings, which amounts to interference in the course ofjustice. Merely because a lawyer, litigant or public at large feels thatthe approach adopted or a decision is wrong, the authority or the forceof the decision does not get eroded. A wrong decision in the matter isequally enforceable like a correct decision. If the Constitution and the

laws provide a remedy to get such decision corrected in a higherforum, such a remedy can be availed. Even a wrong decision becomesfinal, binding and enforceable like a correct decision, if there is noremedy available. The lawyers, litigants or public at large cannot runaway from such decision and they have to be cautioned about theauthority of the Courts.IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH, NAGPURSecond Appeal No.24 of 2002Ganesh s/o Ramkisan Bairagi,

V

Yeshoda wd/o Purushottam Landge,

Coram : R.K. Deshpande, J.Dated : 16th June, 2016Citation: 2016(6) MHLJ 3931. Regular Civil Suit No.63 of 1986 filed for eviction andpossession of the suit property from the tenant on the basis of thenotice issued under Section 106 of the Transfer of Property Act, 1882was dismissed by the Trial Court on 23­7­1993. The plaintiff preferredRegular Civil Appeal No.172 of 1993, which has been allowed by thelearned Joint District Judge, Amravati, on 7­11­2001 by setting asidethe judgment and decree passed by the Trial Court and granting adecree for eviction and possession of the suit property in favour of the

plaintiff along with the arrears of Rs.810/­ and ordering an enquiryunder Order XX, Rule 10(1) of the Code of Civil Procedure fordetermination of the future mesne profits from the date of filing of thesuit till the delivery of the possession. Hence, the original defendantNo.2 is before this Court in this second appeal.2. The Trial Court recorded a finding that the tenancy betweenthe plaintiff and the defendant No.1 in respect of the suit propertycreated on 16­4­1984 has not been proved by the plaintiff, so also theclaim regarding arrears of rent of Rs.810/­ for the period from15­7­1985 to 14­4­1986. The lower Appellate Court has reversed thisfinding and it is held that the plaintiff has established the relationshipof “Landlord and Tenant” between him and the defendant No.1, andthe tenancy was validly terminated, and hence the decree forpossession as well as for arrears of rent of Rs.810/­ has been passed.3. This Court framed the following substantial questions of lawwhile admitting this second appeal on 7­7­2015 :“1. Whether the document styled as agreement of lease(Ex.50) is sufficient to hold that the present appellant

surrendered his tenancy and therefor his father i.e. originaldefendant No.1 became tenant of suit property.2. Whether Ex.50 was inadmissible in evidence.3. Whether evidence of P.W.2 – Govindrao Dharam canbe relied upon to hold that the agreement of lease at Ex.50 isproved.”4. The plaintiff came up before the Trial Court with the casethat an agreement was entered into for creation of monthly tenancybetween him and the defendant No.1­Ramkisan Motidas Bairagi on16­4­1984 on rent of Rs.90/­ per month. The defendant No.1 failed tomake the payment of rent for the period of nine months from15­7­1985 to 14­4­1986 at the rate of Rs.90/­ per month, and henceby issuing the notice under Section 106 of the Transfer of Property Acton 26­2­1986, the tenancy of the defendant No.1 was terminated. Thesuit was filed on 16­4­1986. The defendant No.2­Ganesh Bairagi isthe son of the defendant No.1, and as per the averment made in theplaint, he was joined as the party to avoid the further complications. 5. The defendant No.2 filed his written on 30­10­1986 denying

the case of the plaintiff and taking the stand that he is the tenant andin possession of the suit property since the year 1977 on the monthlyrent of Rs.60/­ (Rs.30/­ to be paid towards rent and Rs.30/­ to be paidtowards supply of electricity and water). The defendant No.2 came upwith the stand in one place in his written statement that since last twoyears, he is paying the rent of Rs.90/­ per month, and in anotherplace, that from the month of February 1986, he is compelled to paythe rent of Rs.90/­, as the water and electricity supply to the premiseswas stopped. However, the money order sent came back to him.6. The defendant No.1, who is the father of the defendant No.2,filed his written statement on 28­11­1986 denying the avermentsmade in the plaint and also the tenancy, as was alleged by theplaintiff. It was the specific stand taken by the defendant No.1 in thewritten statement that it is the defendant No.2, who is the tenant inrespect of the suit property and the defendant No.1 is not at allconcerned with it.7. The original plaintiff died during the pendency of the suitand his daughter­in­law came on record and entered the witness­boxto depose that the agreement dated 16­4­1984 was at Exhibit 50 was

entered into between the plaintiff and the defendant No.1. Theplaintiff proved the notice at Exhibit 47 and its acknowledgement bythe defendant No.1 at Exhibit 48. The plaintiff also examinedPW 2­Govindrao Waindeshkar, the attesting witness, to agreement oflease at Exhibit 50. The defendant No.1 did not enter the witness­box,but the defendant No.2 entered the witness­box and stated that in themonth of February 1986, the rent was increased to Rs.90/­, which wassent by money order and accepted by the plaintiff. The said receipt isproduced on record at Exhibit 55. He further stated that in the monthof March 1986, he sent Rs.60/­ by way of money order to the plaintiff,because the plaintiff stopped the supply of water and electricity, whichreturned to him, as it was refused.8. Before the Trial Court, the following issues were framed andanswered as under :Sr.No. Issues Findingsi Does the plaintiff prove that he leased outthe suit premises to the defendant no.1 on15.4.1984 and deft. executed theagreement to that effect.Noii Does he further prove that the deft.no.1 isin arrears of Rs.810/­ towards the rent forthe period 15.7.85 to 14.4.86?No

iii Does he prove that he validly and legallyterminated the tenancy of the defendantwith effect from the midnightof 14.4.86?Noiv (Deleted) Does the deft. 2 prove that thedeft. no.1 alone is the tenant of suitpremises?Deletedv Does the deft. no.2 prove that he paidRs.1000/­ to the plaintiff as Pagdi(Advance)?Novi Does he prove that he paid the rent uptothe month of February 1986?Yesvii Does he further prove that the rent wasenhanced to Rs.90/­ from Rs.60/­ p.m.from the month of February 1986?Yesviii Is plaintiff entitled to claim the possessionof suit­premises?Noix Is he entitled to reliefs claimed? Nox What decree, order and costs? As per final orderIssue No.(iv) was deleted by consent of the parties. The Trial Courtanswered Issue No.(v) in the negative to the effect that the defendantNo.2 has failed to prove that he has paid Rs.1,000/­ to the plaintiff asPagdi (Advance). The Trial Court also recorded the finding in theaffirmative on Issue No.(vi) holding that the defendant No.2 hasproved that he paid the rent upto the month of February 1986. The

defendant No.2 denied in his written statement the enhancement ofrent from Rs.60/­ to Rs.90/­ per month, and the Trial Court recordedthe finding that the rent was at the rate of Rs.90/­ per month.9. On the substantial question of law at Serial No.1, though theTrial Court recorded the finding that the tenancy between the plaintiffand the defendant No.1 with effect from 16­4­1984 has not beenestablished, the lower Appellate Court reverses this finding and it isheld that such a tenancy between the plaintiff and the defendant No.1has been established. The reliance is placed upon Exhibit 50, theagreement of lease. The plaintiff was not alive to lead evidence toprove the document at Exhibit 50. The daughter­in­law, who came onrecord, could not depose about the execution of this document.PW 2­Govindrao Deshkar, the attesting witness, has deposed that theagreement bears his signature and the defendant No.1 has also signedthe said document in his presence and he identifies the signature ofthe defendant No.1. He says that the rent note was written by onescribe­Bapu Deshmukh and it bears his own signature, the signature ofthe plaintiff, and that of the defendant No.1.Shri V.V. Bhangde, the learned counsel appearing for theappellant/defendant No.2, has invited my attention to the

cross­examination of this witness where he states that at the time ofwriting the document at Exhibit 50, he was present along with theplaintiff and the scribe­Bapu Deshmukh. He states in thecross­examination that except Bapu Deshmukh, no other person hassigned the document in his presence.10. The lower Appellate Court has recorded the finding that thedefendant No.1 has not entered the witness­box to refute thedocument at Exhibit 50. The execution of this document has beenspoken about by the plaintiff in her evidence at Exhibit 46 and thedocument goes to show that from 16­4­1984 onwards, it is thedefendant No.1, who represented the lease­hold rights in respect ofthe suit property. The lower Appellate Court has taken intoconsideration the evidence of the attesting witness. It has also takeninto consideration that the defendant Nos.1 and 2 are the father andson and this relationship cannot be forgotten. On such findings, thelower Appellate Court has held that the document at Exhibit 50 hasbeen proved. Apart from this, the Trial Court has recorded the findingthat the defendant No.2 has failed to prove that he has paidRs.1,000/­ to the plaintiff as Pagdi (Advance) and the rent at the rateof Rs.90/­ per month was paid upto the month of February 1986. It is

not the case of the defendant No.2 that he paid the rent at the rate ofRs.90/­ till February 1986. Thus, there is other evidence available onrecord in support of the findings of the lower Appellate Court. Thefindings are based on evidence available and its appreciation. At anyrate it is a possible view of the matter and no substantial question oflaw arises for consideration out of such findings.11. It is no doubt true that the plaintiff has pleaded in his plaintby way of amendment that the defendant No.2 was initially thetenant, who surrendered his tenancy on 15­4­1984, and with effectfrom 16­4­1984, the defendant No.1 was considered as the tenant inrespect of the suit property. This was introduced in view of the standtaken by the defendant Nos.1 and 2 in their separate writtenstatement that it is the defendant No.2 who is the tenant and not thedefendant No.1. In fact, the Trial Court deleted the issue as to whetherthe defendant No.2 proves that the defendant No.1 alone is the tenantof the suit property. Since the defendant No.2 has surrendered suchan issue, the consequential amendment of pleadings by the plaintiffloses its significance. It was, therefore, not necessary for the lowerAppellate Court to decide the question as to whether the surrender oftenancy was proved or not. The substantial questions of law at Serial

Nos.1 and 3 are, therefore, answered accordingly.12. So far as the substantial question of law at Serial No.2regarding admissibility of document at Exhibit 50 in evidence isconcerned, though such document is an unregistered document, it canbe used for collateral purposes and the decision of the Apex Court inthe case of Anthony v. K.C. Ittoop & Sons and others, reported in(2000) 6 SCC 394, throws light in para 16 thereof on such issue,which is reproduced below :“16. Taking a different view would be contrary to thereality when parties clearly intended to create a lease thoughthe document which they executed had not gone into processesof registration. That lacuna had affected the validity of thedocument, but what had happened between the parties inrespect of the property became a reality. Non­registration ofthe document had caused only two consequences. One is thatno lease exceeding one year was created. Second is that theinstrument became useless so far as creation of the lease isconcerned. Nonetheless the presumption that a lease notexceeding one year stood created by conduct of parties remainsunrebutted.”

In view of above, the non­registration of document would not come inthe way of the Court to hold that the relationship of “Landlord andTenant” between the plaintiff and the defendant No.1 in the presentcase has been established, coupled with the other evidence availableon record. The substantial questions of law at Serial No.2 is answeredaccordingly.There is no substance in this second appeal, and the same isdismissed. No order as to costs.13. At this stage, Shri V.V. Bhangde, the learned counsel for theappellant/defendant No.2, submits that his arguments that thedocument at Exhibit 50 has not been proved, the view taken by thelower Appellate Court is not even a possible view of the matter, andthe findings recorded by the lower Appellate Court are perverse, havenot been dealt with in this judgment, which is dictated in open Court.He, therefore, insisted that the said points be dealt with. I thinkwhatever arguments have been understood are dealt with in thisjudgment. If any points are left out, Shri Bhangde was asked to placeon record the written notes of arguments, which can be dealt withsubsequently while checking the judgment. Since there is insistenceon the part of Shri Bhangde to deal with such points now, I make it

clear that the consciousness of this Court about such admissions of theattesting witness is reflected in the judgment. This Court has held thatit is a possible view of the matter which is taken by the lowerAppellate Court and such, the argument that the findings of the lowerAppellate court are perverse, has also been dealt with. There is noother point which Shri Bhangde has urged. 14. Again, at this stage, Shri V.V. Bhangde, the learned counselfor the appellant/defendant No.2, submits that the office be givendirection not to list the matters in which he is appearing for any of theparties before this Court. In other words, he submits that I shouldrecuse from taking up the matters wherein Shri V.V. Bhangde isappearing for any of the parties. The submission shocks myconscience, particularly when it suddenly came from a regularpractitioner from this Court, who was being looked at as anexperienced and responsible officer of the Court. The entirearguments in this matter went on smoothly, patiently and withinterest. After conclusion of the arguments, both the learned counselswere asked as to whether they intend to make any additionalsubmissions, and thereafter the dictation commenced as per the usualpractice. I need not delve upon any further and I refrain from making

any comments against Shri V.V. Bhangde. However, the increasingtrend need to be commented upon; so as to caution the lawyers andthe litigants about the consequences of it, which can be avoided.15. A lawyer has his own choice of appearing before the Courtpresided over by a particular Judge to conduct the matter. If hismatter is listed before the Court where he does not want to appear, heis at liberty *to return such matter and/or fees to his client and canask him to engage some other lawyer or he may refuse to accept thematter if he has not already filed his vakalatnama. A Judge may alsorecuse himself from taking up the matters of the lawyers with whomhe is closely related or where his conscious does not permit him totake up the matters of some lawyers. In these situations, there maynot be any problem either with a Judge or a lawyer, but where theCourt passed an order against a particular lawyer not to appear in hisCourt, it takes a colour of penalty or punishment to such a lawyer,which may result in taking some disciplinary action against him by theBar Council of India or of State, which issued him a Sanad of Practice.Such a stage by a Court may be construed of blacklisting of a lawyer.Seldom, such event occurs, and the Courts also normally avoid it.

16. A tendency has started growing amongst lawyers to dictate aJudge to recuse from taking up his matters when the decision goesagainst his client or his wavelength does not match with the Judge orhe does not find comfort in conducting the matter or for some suchreasons. This is an insult personally to a Judge. Such reactions arenormally experienced when the lawyers take heavy fees from theirclients with an assurance to bring the result of the cases in their favouror to impress upon the clients sitting in the court room during thecourse of hearing, the boldness which he possesses to browbeat theCourt. If a lawyer exercises his choice of not conducting the matter,he loses his client and fees, which he does not want to do. If a Judgeaccedes to such demand of a lawyer for recusal, the effect isthree­fold ­ (i) the confidence of a lawyer to browbeat the Court isboosted, (ii) a lawyer gets rid of the Court where he finds discomfortin conducting the matter, and (iii) it creates an additional source ofincome for him, from the other lawyers and the litigants, who do notwant their matters listed or dealt with by such a Judge. This promotesthe practice of bench­hunting. No system of justice can tolerate suchpractice by a lawyer and the same is required to be curbed anddeprecated.

17. Recently, in the judgment, which I have delivered in CivilRevision Application No.26 of 2016 on 6­6­2016 (Satish MahadeoraoUke v. The Registrar, High Court of Bombay, Bench at Nagpur, Nagpur),I have observed in para 25 thereof as under :“25. A Judge may recuse at his own choice from a caseentrusted to him by the Chief Justice and it would be a matterof his own choosing. But recusal at the asking of the litigatingparty, unless justified, must never be acceded to. This is whatthe Apex Court has held recently in NJAC case instituted by theSupreme Court Advocates­on­Record ­ Association and anotherv. Union of India, reported in 2015 (11) SCALE 1. Thequestion of recusal is normally decided by a Judge on the basisof his personal or private interest in the subject­matter of thelitigation, his intimacy with the party/parties to a lis beforehim, his perception about conflict of interest in taking up thematter, and his own conscience. Such decision does not dependupon the dictates of lawyers or litigants. ...”18. Recusal to take the matters to be conducted by some lawyers,is a matter of Judge's own choosing and it cannot be at the dictates ofthe lawyers. What a Judge has to see is that he performs his duty ofdeciding the matters before him without fear or favour, affection orill­will. He has to keep in mind the principle that the justice should

not only be done, but it must appear to have been done. The decisionof recusal to take the matters of lawyers, depends upon the Judge'spersonal relations or intimacy with such lawyers, and his ownconscience to decide a case by observing the oath which he has takenwhile occupying the position as a Judge. Ultimately, a Judge is also ahuman­being and the Judges come from different strata of the Society,having their own views, ideas, angle or perception, based on thevaried individual experience in life, which may or may not match witheach others or with some lawyers or litigants. However, this cannot bea reason to avoid conducting the matters listed before such a Judge orthe Judges. Once the constitutional authority of a Judge or the Judgesto adjudicate the matters is accepted, it cannot be lowered down byasking him or them to recuse to hear and decide the matter. 19. To prevent a Judge or the Judges from performing his ortheir duties in this fashion causes distraction of attention in thejudicial proceedings, which amounts to interference in the course ofjustice. Merely because a lawyer, litigant or public at large feels thatthe approach adopted or a decision is wrong, the authority or the forceof the decision does not get eroded. A wrong decision in the matter isequally enforceable like a correct decision. If the Constitution and the

laws provide a remedy to get such decision corrected in a higherforum, such a remedy can be availed. Even a wrong decision becomesfinal, binding and enforceable like a correct decision, if there is noremedy available. The lawyers, litigants or public at large cannot runaway from such decision and they have to be cautioned about theauthority of the Courts.